The Supreme Court on Monday declined to hear a high-profile case on transgender rights, sending it back to the lower courts. The justices tossed out a ruling Monday that allowed Gavin Grimm, a transgender boy in Virginia, to use the bathroom he chooses, and ordered that a lower court reconsider the case in light of new guidance issued by the Trump administration last month.
The justices had planned to hear arguments later this month and both sides had pressed for the high court to weigh in amid a national debate over rights for the transgendered.
Grimm, born female, was barred from using the boy’s bathroom in 2014 after the Gloucester County School Board enacted a policy requiring all students to use the bathroom that corresponds with the gender assigned at birth. The 4th Circuit Court of Appeals sided with Grimm, who argued that the school board “impermissibly discriminated against him” in violation of Title IX anti-discrimination laws and his constitutional right to equal protection under the law. The court cited Obama administration guidance that transgender students should be allowed to use the bathrooms corresponding to their gender identity, claiming those rights were covered federal anti-discrimination laws addressing “sex.”But on Feb. 22, the Trump Justice Department and Education Department sent a letter to the lower court rescinding that Obama guidance.
The fight now returns to the lower court, where both sides vowed to press forward with their case.
“On remand to the lower courts, the Board looks forward to explaining why its commonsense restroom and locker room policy is legal under the Constitution and federal law,” the Gloucester County School Board said in a statement. LGBTQ advocates expressed disappointment in the justices’ decision.
“This announcement speaks volumes to the ways that President Trump’s actions are already having devastating consequences for transgender youth across the country,” said Freedom for All Americans Executive Director Matt McTighe, in a statement.
At issue is whether Title IX’s anti-discrimination measures can force schools to allow transgender students to use the bathroom of their choice. The Obama guidance said it did. The Trump administration in withdrawing that guidance said the Obama administration failed to “explain how the position is consistent with the express language of Title IX,” but didn’t make their own case for whether Title IX applies. Legal experts say it’s unclear what the Fourth Circuit will do.
“It could ask for more briefing, it could send it back to the district judge to rule on the merits and then let it come back up,” said Carl Tobias, a professor at the University of Richmond School of Law.
“It could also wait and see what DOJ and DOE [Department of Education] are planning on doing or it could just go forward and reach the merits under Title IX and try to discern the legislative intent from 1972.”
In a statement, Mark Phillis, a discrimination and harassment lawyer at Littler Mendelson P.C., said there are two cases pending before the Second Circuit and Seventh Circuit Courts in which the interpretation of “sex” is being considered in the employment context under Title VII of the Civil Rights Act.
“Since Title IX cases often look to cases decided under Title VII, these cases could have an impact on the way the this case may be decided,” he said.
Legal experts say that the issue could eventually end up back before the Supreme Court, with other cases also making their way through the courts.
“No question about it,” Tobias said. “It’s just a matter of which case is the right case.”
He said Grimm’s case was premature. “The district court never reached the merits,” he said. “I don’t know why they granted cert.”
The American Civil Liberties Union (ACLU), which brought the case forward on Grimm’s behalf, told the justices on March 1 that the Trump administration’s actions made it critical for the high court to quickly resolve the question of transgender students and bathrooms.
–This report was updated at 3:04 p.m.